Center For Women's Justice: The problem and our solutions

The problem and our solutions

The Problems

the millet system

In Israel, religious courts decide all matters regarding the personal status issues of Israeli citizens. Whether or not a person is married or divorced is a matter of religious law. Jews are bound by Jewish law (the halakha) ; Muslims by the shariya; Christians by canon law. We Israelis inherited this system, known as the “millet system” (millet means religious community) from the Turks, and embraced it as our own shortly after the founding of the State.

the get, kinyan

Since the halakha determines the status of Israeli Jews, this means that Jewish women cannot get divorced in Israel unless their husbands deliver a bill of divorce (a get) to them. If a husband is missing, incapacitated, or simply refuses to give a get, a Jewish wife remains anchored forever to a dead marriage (agunah). The source of this legal arrangement lies in the notion of kinyan which essentially establishes that, at the time of marriage, a man obtains an exclusive conjugal rights to his wife. Only he has the authority to release those rights.

extortion

Many Jewish women who want a Jewish divorce from recalcitrant husbands choose to pay for their freedom, rather than live their lives in limbo waiting for a get. Payment is just a matter of negotiation. (Often the amount is indirectly proportional to the integrity of the husband and his attorney). This sad state of affairs is ignored, and sometimes even encouraged, by the rabbinic courts. The courts prefer to have a couple reach an “agreement” to get divorced-- however contrived, and however draconian --rather than interfere with the halakhic notion that a husband must give a get of his own “free will.” A get that is not given of a man’s free will is invalid as a “forced divorce” (a get meuseh). As a result, many women give up their rights to child maintenance, marital property, pension benefits, etc. in exchange for the get. Sometimes they pay cash. Sometimes well-meaning philanthropists pay in their stead. These payments may “solve” the problem for the individual women involved, but they perpetuate the culture of extortion for the rest of us and encourage men to hold their wives hostage for the get.

forever bound

Some men don’t have a price. They are missing, incapacitated, wealthy, or simply vengeful. The wives of such men can be stuck indefinitely. Read A Perfectly Ordinary Story of a woman who spent 19 years in Israeli rabbinic courts asking for a get; and about a woman Bound and Chained to a bad marriage when her husband abandoned her and moved to Cleveland.

Solutions

incentives

Most solutions offered involve providing incentives (sometime negative ones) to recalcitrant husbands. The oldest, and most classic, of these is the Rambam’s suggestion that we beat a husband until he says “I agree” (of his own free will, of course). Modern versions of the Rambam’s suggestion include:

putting husbands in jail for not giving a get

putting him in solitary confinement and taking away his canteen privileges.

On a somewhat more gentle note: expanding the grounds that the court can order a husband to give a get

And on an even more sophisticated note: insisting that husbands-to-be agree to pay increased spousal support in the event that they live apart from their wives, thereby giving husbands an incentive to divorce their wives and free themselves of this spousal obligation.

This is the basis of most prenuptial agreements that have been approved by rabbinic sources.

neutralizing the husband’s unilateral power

We at CWJ are not satisfied with the solutions that give incentives to husbands. They leave the power to give the divorce in the husband’s hands. We want to take that power away. This is an ambitious project but one that we think is essential to a complete solution. But who should be given the power in the husband’s stead?

The Bet Din

Some solutions take away the power from the husband and give it to the rabbinic courts. Such solutions would include annulment in its various forms. This would allow a rabbinic court to:

declare the marriage over (if the husband abandoned his family, for example, or perhaps committed adultery)(hafkaah);
or to declare a marriage void ab initio (from its start) in the event that there was a salient defect in the husband that would have prevented the wife from marrying him had she been aware of it (mekah taut).

The community (us)

Other solutions depend more on grassroots action than on rabbinic courts. Such solutions include:

subtly changing the marriage ceremony so that it is no longer based on kinyan. (Rabbi Prof. Meir Simha Feldblum suggested that instead of betrothing a bride with the words הרי את מקודשת לי, we use the phrase הרי את מיוחדת לי.)
getting married in a civil ceremony so that no kinyan is involved;
making the marriage conditional (on, for example, living together) and
appointing other members of the community to give the get instead of the husband.

Civil courts

Civil courts can’t change Jewish law. But they can issue clear and unambiguous statements that it is wrong to cause harm while hiding behind the name of God and His laws. Until recently most Israeli civil courts have "taken what is Caesar’s, and rendered onto God what is God’s." This approach has allowed much harm to go unaddressed. At CWJ, we insist that our civil courts redress the distorted misuse of religious norms to cause physical, proprietary, and psychological damage-- mostly to women. This position underlies our advocacy projects.

other relevant sites

icar- Coalition for Agunah Rights

kolech- Religious Jewish Women's Forum (in Hebrew)

get rap

See Susan Weiss' article giving an overview of Israeli divorce law.

The halakha also determines the status of Jews in the Diaspora who accept the halakha as their ruling law. (Click here for some definitions of key terms.)

The first agunah case I ever heard of in the 70’s involved my camp-counselor’s sister. Her parents paid their son-in-law $100,000 for the get- s.w.

See Susan Weiss' article comparing different prenuptial agreements.

See also our Contract for a Just and Fair Marriage (abridged version) for a prenup that is user-friendly (short and clear) and includes: a financial incentive to give the get; an agreement to have any dispute regarding custody, child support, and marital property adjudicated in a civil court; a condition that would render the couple's Jewish marriage void in the event of an 18 month separation and the desire of one of the parties to divorce.

See בעיית העגונות וממזרים- הצעת פתרון מקיפה וכוללת in 19 Dinei Yisrael 2003 (1997-8) for Rabbi Feldblum's solution);

See Rivkah’s column on Conditional Marriages for why this is important and go to Contract for a Just Marriage to see an example of a document that implements this approach.

Read Rabbi Michael Broyde's tripartite agreement in which he too drafts a prenuptial agreement that includes a condition (appendix to his article).